In Biovail Laboratories Int’l SRL v. Cary Pharmaceuticals Inc., C.A. No. 09-605-JJF-LPS (D.Del., May 26, 2010), Judge Stark denied Defendant Cary Pharmaceuticals (“Cary”) motion to strike plaintiff Biovail expert’s supplemental declaration that was submitted by plaintiff in connection with the filing of its answering brief on claim construction. However, given plaintiff’s conduct in submitting its expert’s supplemental declaration after the deadline set forth in the Scheduling Order agreed to by the parties for depositions of experts who submitted declarations, Judge Stark, among other things, postponed the Markman hearing for four weeks and allowed Cary to conduct a second deposition of plaintiff’s expert directed solely to his supplemental declaration and to file a reply brief in support of its proposed claim construction if it so desired. Id. at 5-7.
In his Order, Judge Stark noted that, “[w]hile Biovail has not engaged in willful deception, its silence as to its intent to file a rebuttal report and its failure to in any way disclose Hopfenberg’s rebuttal opinions at a time when Cary could test and/or respond to them appears to have had the consequence of deceiving Cary into believing that the record with respect to the opinions of claim construction was complete. . . . Biovail’s conduct, if unaddressed, will unduly prejudice Cary’s ability to advocate its position at the Markman hearing.” Id. at 5.
A copy of the Order is attached hereto.